Sweetwater Crafts

National Labor Relations Board - Board Decisions

Sep 28, 1990

300 N.L.R.B. 18 (N.L.R.B. 1990)

18
300 NLRB No. 3
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
The Respondent excepts to the judge’s finding that Vice President Kelvin
Malstrom did not refute the testimony of employee Robke that, in a conversa-
tion at Robke’s work station, Malstrom threatened to move the plant if a union
came in. We agree with the judge that the testimony of Malstrom on which
the Respondent relies concerns an earlier conversation with employees about
possible expansion by the Respondent, and that Malstrom did not deny on the
record making the threat at Robke’s work station. In light of our conclusion
that the Respondent violated Sec. 8(a)(1) by Kelvin Malstrom’s threat to move
the plant, we find it unnecessary to pass on the judge’s finding that Vice Presi-
dent Jerry Malstrom made a similar threat, since the additional violation would
not affect the Order.
Sweetwater Crafts, Inc. and United Steelworkers of
America, AFL–CIO. Case 7–CA–29121
September 28, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On November 30, 1989, Administrative Law Judge
Donald R. Holley issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Sweetwater Crafts, Inc.,
Manistee, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Joseph P. Canfield, Esq., for the Petitioner.
Charles L. Hitesman, Esq. (Landman, Latimer, Clink &
Robb), of Muskegon, Michigan, for the Respondent.
James Hughes, Sub-District Director, of Manistee, Michigan,
for the Intervenor.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge. On an
original charge filed on April 4, 1989, by United Steel-
workers of America, AFL–CIO–CLC (the Charging Party
and/or the Union), the Regional Director for Region 7 of the
National Labor Relations Board issued a complaint on May
11, 1989, which alleged, in substance, that Sweetwater
Crafts, Inc. (the Respondent) engaged in conduct which vio-
lates Section 8(a)(1) and (3) of the National Labor Relations
Act (the Act) by: (1) threatening to move its plant if employ-
ees selected a union to represent them; (2) soliciting em-
ployee grievances with the implied promise to redress them;
(3) maintaining a policy that prohibits employees discussing
their pay rates with their fellow employees; and (4) by fail-
ing and refusing to recall employees Rick Schimke and Mike
Robke from layoff because they had engaged in activities on
behalf of Charging Party. Respondent filed a timely answer
denying it had engaged in the unfair labor practices alleged
in the complaint.
The case was heard in Manistee, Michigan, on August 16,
1989. All parties appeared and were afforded full opportunity
to participate. At the onset of the hearing, counsel for the
General Counsel (the General Counsel) amended the com-
plaint to allege, in the alternative, that Mike Robke was re-
fused recall by Respondent because he engaged in ‘‘pro-
tected concerted complaints.’’ At the conclusion of the hear-
ing, General Counsel was permitted to further amend the
complaint to add an additional violation of Section 8(a)(1) of
the Act, and to allege, in the alternative, that Rick Schimke
was refused recall because he had engaged in protected con-
certed activities. On the entire record, after careful consider-
ation of posthearing briefs filed by the parties, and from my
observation of the demeanor of the witnesses who appeared
to give testimony, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Michigan corporation, maintains its prin-
cipal office and place of business at 100 S. Glocheski Drive,
Manistee, Michigan, where it is engaged in the manufacture,
sale, and distribution of small fiberglass boat parts. During
the 12-month period ending April 7, 1988, its gross revenue
exceeded $1 millon, and it shipped products valued in excess
of $50,000 to customers located outside the State of Michi-
gan. It is admitted, and I find, that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. STATUS OF LABOR ORGANIZATION
It is admitted, and I find, that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent commenced operations in Manistee, Michigan,
in February 1987. It is engaged in the manufacture of fiber-
glass parts for boats, and produces items such as showers,
galleys, radar arches, dive platforms, fish tanks, and hatches.
Its principal customers are Chris-Craft, with facilities in
Swansboro, North Carolina, and Bradenton, Florida, and
Four Winns, which is located 50 miles from Manistee in
Cadillac, Michigan. Four Winns purchases approximately 75
percent of its manufactured parts, and Chris-Craft purchases
the remaining 25 percent. With exception of parts destined
for Bradenton, Florida, it accomplishes delivery by using its
own trucks.
The Manistee plant consists of some six departments, i.e.,
mold, laminating, gelling, popping, grinding, and repair. At
the time of the hearing, about 12 production employees were
utilized. In normal circumstances, such employees are super-
19SWEETWATER CRAFTS
1 Due to financial difficulties, Kelvin Malstrom was not actively employed
at the time of the hearing.
2 The complaint alleges, but Respondent denies, that Rood is a statutory su-
pervisor. The record reveals Rood participates in the interview of applicants,
prepares productions schedules and makes daily work assignments, assigns
overtime work, grants requests for time off, issues warnings to employees,
transfers employees from job to job, and imposes discipline on employees. His
normal work hours are 5 a.m. to 5 p.m. and he is a salaried employee. He
performs hands-on work when needed and exercises independent judgment
when deciding when and where he should help out. Departmental supervisors
report problems and their needs for extra help to Rood. On the indicated facts,
I find Michael Rood is a supervisor within the meaning of Sec. 2(11) of the
Act.
vised by Kelvin Malstrom,1 vice president of manufacturing;
Michael Rood, production manager; and departmental super-
visors. Rood testified the departmental supervisors report to
him, and he reports directly to Kelvin Malstrom and to Re-
spondent’s president Kraig Malstrom.2
During July and August 1988, Four Winns sought to cause
Respondent to move its operation closer to Cadillac so it
could service them better. At about the same time, the Cad-
illac Chamber of Commerce and dignitaries from Lake City,
Michigan, which is located some 15 miles from Cadillac,
also encouraged Respondent to locate in their respective cit-
ies. After a representative of Lake City visited the plant, and
Respondent’s officers visited the cities to explore a possible
move, Kraig Malstrom testified Colleen Bush, a production
employee, asked him if they were considering a move to
Lake City. He told her they were entertaining the idea.
Malstrom indicated Respondent’s employees were aware it
was considering alternate sites.
In late August or early September 1988, the Union com-
menced to distribute literature at the front entrance to Re-
spondent’s premises. Thereafter, Steelworkers authorization
cards were mailed to employees. Alleged discriminatee Rick
Schimke testified he signed a card he had received in the
mail on September 20 and mailed it back to the Union. Al-
leged discriminatee Michael Robke also signed a card at
some unstated time during the organization drive. On Octo-
ber 20, the Union filed a petition in Case GR–7–RC–18817.
An election was held on November 30, 1988. The Union re-
ceived 11 votes, 12 votes were cast against it, and 2 ballots
were challenged. Objections were filed by the Union, and a
hearing on challenged ballots and objections was held on
January 19, 1989. Alleged discriminatee Schimke, who had
served as the Union’s observer at the election, testified in be-
half of the Union during the hearing. By Order dated March
10, 1989, the Board adopted the hearing officers report and
recommendations on objections and challenged ballots, and
directed that the November 30, 1988 election be set aside
and that a second election be conducted. James Hughes, the
subdistrict director of District 29 of the Steelworkers, testi-
fied without contradiction that Respondent indicated during
preelection conference that alleged discriminatee Schimke
was in layoff status, but when the second election was held
on April 5, 1989, Kraig Malstrom refused to permit Schimke
to enter the building to vote, claiming his employment had
been terminated. The Union received only two votes during
the second election, and after it failed to cause objections to
be lodged with the Regional Office in timely fashion, the
Board certified the results of the election on May 24, 1989.
B. The Alleged 8(a)(1) Conduct
The complaint alleges, and General Counsel contends, that
Respondent, through comments made to employees during
the organization campaign, by soliciting employee grievances
with the implied promise to remedy them, and by maintain-
ing a published rule prohibiting employees from discussing
their rate of pay with others, engaged in independent viola-
tions of Section 8(a)(1) of the Act. The conduct of respond-
ent officials alleged to be unlawful and the rule alleged to
be offensive are discussed below.
1. Conduct of Kelvin Malstrom
The complaint alleges, in substance, that Respondent,
through Kelvin Malstrom’s conduct, violated Section 8(a)(1)
of the Act by: (1) threatening that if it expanded its oper-
ations it would not expand in Manistee if employees selected
a union to represent them; and (2) threatening to move the
Manistee plant if employees selected a union to represent
them. The evidence offered with respect to the allegations is
set forth below.
Alleged discriminatee Rick Schimke testified that on a
date he could not recall, but believed to be in October 1988,
he conversed with Kelvin Malstrom at the Salty Dog bar in
Manistee. He recalled that Malstrom told him the Company
was really doing great and a number of cities were calling
them in an attempt to get them to relocate. He testified
Malstrom mentioned a few towns, including Cadillac. With
respect to Cadillac, he indicated Malstrom said he did not
really want to move there because Four Winns was there and
he did not want their (employee) rejects.
Kelvin Malstrom admitted that he shot pool and conversed
with Schimke and other employees in a bar during Sep-
tember or October 1988. His recollection, however, was that
the conversation described by Schimke occurred at the
Northside bar rather than at the Salty Dog. He testified some
of the employees had not experienced union representation
and indicated they discussed the pros and cons of representa-
tion touching on subjects such as the bargaining process,
conditions under which strikes occurred, and conditions
under which lockouts might occur. His recollection of the
portion of the conversation described by Schimke was frag-
mentary; he merely indicated he was sure he stated he op-
posed a move to Cadillac because he did not want to end
up with Four Winns rejects. During cross-examination,
Malstrom admitted that he told the employees that, if they
were to expand their operations, they would not do it in
Manistee if a union were selected by the employees.
General Counsel relies on testimony given by alleged
discriminatee Michael Robke to support the plant closure al-
legation. Robke testified that about a month before the No-
vember 30, 1988 election, Kelvin Malstrom appeared at his
work station and stated ‘‘if a union were to come into our
shop, they were going to pack up and move elsewhere where
they didn’t have to worry about unions.’’ Malstrom did not
refute the described Robke testimony when he appeared as
a witness.
Review of the record causes me to conclude that General
Counsel has failed to establish that Respondent violated the
Act through comments Kelvin Malstrom may have made to
Schimke and others at the Salty Dog or Northside bar. The
original charge in this case was filed on April 4, 1989, and,
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Respondent has no ‘‘pulling’’ department, but has a ‘‘popping’’ depart-
ment and a ‘‘gelling’’ department.
4 See minutes of meeting. G.C. Exh. 8.
5 Respondent supports its contention that its conduct did not violate Sec.
8(a)(1) by citing Ambox, Inc., 357 F.2d 319 (5th Cir. 1966), in which the Fifth
Circuit refused to enforce a Board finding in Ambox, Inc., 146 NLRB 1520,
1521 (1964), that an employer violated Sec. 8(a)(1) by announcing various
employee benefits at a time when timely objections to an election were pend-
ing. Obviously, the later case cited by General Counsel must be considered
to be controlling.
accordingly, the 10(b) date would be October 4, 1988.
Malstrom indicated the conversation may have occurred in
September or October, and Schimke was unable to fix the
date, but stated he believed it occurred in October. In the cir-
cumstances described, I conclude the date of the event was
not fixed and a finding of violation is not warranted. Con-
sequently, I recommend that paragraph 8(e) of the complaint
be dismissed.
With respect to the remaining allegation, it is clear, and
I find, that by threatening to pack up and move the plant
elsewhere if the Union came into the shop, Respondent,
through Kelvin Malstrom’s conduct, violated Section 8(a)(1)
of the Act as alleged.
2. Conduct of Jerry Malstrom
Paragraph 8(b) of the complaint alleges, in substance, that
in or about October 1988, Jerry Malstrom threatened employ-
ees by stating the plant would be moved if they selected a
union to represent them.
Alleged discriminatee Robke testified that about a week
after Kelvin Malstrom threatened plant closure at his work
station, he overheard Jerry Malstrom making a comment to
the employee in the pulling department3 while he was on his
way to the washroom. He testified the comment was ‘‘that
if a union was to come in there, they were going to pack
up and move elsewhere.’’
Jerry Malstrom is Respondent’s vice president of finance.
He testified he could not recall telling employees Respondent
would move its plant if the Union came in. He testified he
had no specific memory of not telling employees that; that
anything said would have been casual and he could not recall
casual conversation after almost 2 years. He added he did not
think he would make such a comment because he knew you
are not supposed to make comments like that.
Noting that Jerry Malstrom failed to unequivocally deny
the remark attributed to him by Robke, and the fact that Re-
spondent failed to call the employee the remark was sup-
posedly made to as a witness, I am persuaded Robke’s testi-
mony must be credited. Accordingly, I find, as alleged, that
Respondent, through Jerry Malstrom’s conduct, threatened
employees with plant removal if they selected the Union as
their bargaining agent and thereby violated Section 8(a)(l) of
the Act.
3. Alleged solicitation of grievances
Paragraph 8(c) of the complaint alleges that ‘‘on or about
December l, 1988, . . . Respondent . . . solicited employee
grievances with the implied promise to redress said griev-
ances.’’
The record reveals that immediately after the November
30, 1988 election, employee Colleen Bush told Kraig
Malstrom and Michael Rood that now that they had lost the
election employees would like to get together and tell them
some of their complaints. Malstrom testified that, after he in-
formed Bush they had an open door policy to discuss com-
plaints, Rood went to each department to tell employees they
were going to have a meeting to collect complaints and if
they had complaints or did not want to be at the meeting,
they could write them down on a sheet of paper. While Rood
sought to play down his part in the solicitation of complaints,
alleged discriminatees Schimke and Robke credibly testified
that Rood came to the repair department with a clipboard,
put it on their locker, and told them if they had any com-
plaints to write them down and they would try to work them
out. Schimke added that Rood told them if someone had al-
ready written a complaint down and they agreed with it, they
should indicate that by putting a checkmark by it. Kraig
Malstrom testified Rood later collected the complaints, ex-
cepting those made by lamination department employees, and
brought them to him. The employee complaint list consisting
of two pages was placed in the record as General Counsel’s
Exhibit 7. The comments and/or complaints listed ranged
from requests for explanation of stated company policies to
complaints involving a dental plan, equal pay for job classi-
fications, eye examinations, notice of overtime, face masks,
and other work-related matters.
The record reveals a so-called employee involvement
meeting was held with employees from each department on
the Thursday following the election (December 1, 1988). The
complaints placed on the lists collected by Rood were dis-
cussed, and some of them were admittedly remedied.4 There-
after, on December 7, 1988, the Union filed objections to the
election, and the challenged ballots and objections were ulti-
mately decided by the Board as the election had been con-
ducted pursuant to a Stipulation Election Agreement.
General Counsel correctly observes that the Board held in
Electric Hose & Rubber Co., 267 NLRB 488, 490 (1983),
that an employer who solicits employee grievances and
thereafter seeks to rectify them, after an election, while ob-
jections to the election are pending, engages in conduct
which violates Section 8(a)(1) of the Act.5
Here, as in the above-cited case, the representation case
proceeding had not been concluded when Respondent en-
gaged in the conduct under discussion. In addition to the fact
that the Union was entitled to file objections to the election
for a period of 7 days following the election, challenges were
determinative as the vote was 11 to 12, with 2 challenged
ballots having been cast. In the circumstances described, I
find that here, as was the case in Electric Hose, supra, Re-
spondent knew or should have known when it solicited em-
ployee complaints and sought to rectify them that the final
result of the election was to be determined at some future
date. Accordingly, I find, as alleged, that by soliciting em-
ployee complaints and thereafter holding a meeting with em-
ployees to rectify them, Respondent violated Section 8(a)(1)
of the Act.
4. The policy prohibiting discussion of wages
Paragraph 8(d) of the complaint alleges that since April
21, 1989, Respondent has unlawfully maintained a company
policy that prohibits employees from discussing salaries/pay
rates with their fellow employees.
21SWEETWATER CRAFTS
6 In addition to Schimke and Robke, Colleen Bush and lllll
Goodspeed were not recalled.
7 When attempting to fix the date of the described conversation, General
Counsel asked when, in relation to the posting of the election date of the elec-
tion, the conversation occurred. The reporter erroneously referred to Kelvin
Malstrom rather than Kraig Malstrom in transcribing counsel’s question. The
transcript, p. 25, L. 20, is hereby corrected by substituting ‘‘Kraig’’ for ‘‘Kel-
vin.’’
8 Kraig Malstrom testified that prior to December 1988, Chris-Craft had a
facility in Holland, Michigan. The Holland entity was the corporation which
filed in bankruptcy.
Kraig Malstrom testified he prepared the list of company
policies, which were placed in evidence as General Counsel’s
Exhibit 9, during the summer of 1987, and he indicated em-
ployees are given a copy when they are hired. With respect
to pay of employees, the document states: ‘‘Policy
Salary/Pay Rate Confidential Between Fellow Workers.’’
Malstrom testified the policy prohibiting discussion of pay
rates among employees was promulgated because Respond-
ent grants raises according to merit and it wanted to discour-
age employees from saying someone received a raise but he
or she did not. Malstrom testified employees who have vio-
lated the policy were told wages were supposed to be con-
fidential between fellow workers. He claims employees vio-
lating the policy have not been issued verbal or written rep-
rimands, have not been disciplined, and no employees have
been discharged for violating the policy.
In Waco, Inc., 273 NLRB 746, 748 (1984), the Board held
that, in the absence of a legitimate and substantial business
justification, an employer violates Section 8(a)(1) of the Act
by maintaining a rule which prohibits employees from dis-
cussing their own wages among themselves. Here, the only
reason given by Respondent for the promulgation and main-
tenance of its rule was that it utilizes a merit pay system and
wished to avoid situations where employees would inquire
why they were not making as much as their fellow employ-
ees. I find the reason for the policy which was advanced
does not constitute a ‘‘legitimate and substantial business
justification’’ for the policy. Accordingly, I find, as alleged,
that, by maintaining a policy which prohibits employees from
discussing their wages, Respondent violated Section 8(a)(1)
of the Act.
C. The Refusal to Recall Employees Rick Schimke and
Michael Robke
Respondent effectuated a layoff in December 1988 for
economic reasons. Eleven employees were laid off. All but
four were eventually recalled. Employees Schimke and
Robke were included in the layoff but were not recalled.6
General Counsel initially contends the alleged discriminatees
were not recalled because they had engaged in activities on
behalf of and in support of the Union. In the alternative, he
contends the alleged discriminatees were not recalled because
they engaged in protected concerted activities. Respondent
contends it failed to recall both alleged discriminatees for
valid work-related reasons. The testimony and evidence of-
fered by the parties in support of their respective contentions
is set forth below.
Rick Schimke
Schimke was hired by Respondent in November 1987 after
he was interviewed by Kraig Malstrom and Mike Rood. His
starting wage was $5.50 per hour. He was initially assigned
to work in the grinding department. After 3 months, he was
moved to the repair department where he worked at the time
he was laid off on December 15, 1988.
As indicated, supra, Schimke signed a union authorization
card on November 20, 1988. He then mailed it back to the
Union and asked fellow employees if they had signed their
cards and sent them to the Union. Thereafter, he was sup-
plied with a jacket which had the Steelworker logo on it, and
he testified without contradiction that he wore it to the plant
and was observed wearing it by Kraig Malstrom, Kelvin
Malstrom, and his supervisor, Mike Rood. Schimke served as
the Union’s observer at the November election, while Rood
served as the Company’s observer. The employee testified on
behalf of the Union at a hearing on objections and chal-
lenged ballots on January 19, 1989.
During the organization campaign and the preelection pe-
riod, Schimke discussed the union situation with both Kraig
and Kelvin Malstrom in a local bar. His version of Kelvin
Malstrom’s comments during their bar conversation is set
forth, supra. With respect to Kraig Malstrom, he testified he
approached Respondent’s president and commented he had
heard that he was taking the union vote very personal and
that he was mad. He recalled Malstrom agreed he was mad,
and that he then remarked he thought if the Union got in
they would be asking for a $3 raise to bring them up to
where they were at Century Boat; that they could not talk
person-to-person and would have a union man in between
them.7
Immediately after the November 30 election, Rood met
Schimke as he was coming out of the office and informed
the employee they would be getting a sheet on what they
wanted to change around the Company. Schimke told Rood
he only had a few minor things to put down, one being that
he would like to get paid every week.
On December 15, 1988, at approximately 2 p.m., Kelvin
Malstrom informed Schimke he was to be laid off because
Chris-Craft had filed in bankruptcy and Four Winns was hav-
ing a month or so off during the holiday season.8 Malstrom
then indicated their policy was to lay off the single men and
keep the married men because of family reasons. The em-
ployee claims Malstrom concluded the conversation by say-
ing the layoff should be short; only 2 to 4 weeks. Schimke
testified that, when he left work on the day of his layoff, he
was given a jacket with the Sweetwater logo on it by Kraig
Malstrom, and that Malstrom commented it was to let him
know there was a Santa Claus; that it was not a union bribe.
In early March 1989, Schimke telephoned Respondent’s
plant to inquire about recall. He testified, when Kraig
Malstrom got on the line, he told him he heard they were
busy again and that they were hiring people back plus new
people. He recalled Kraig replied, ‘‘Yes, we did.’’ The em-
ployee then stated he would like to know why he was not
being called back, and he claims Malstrom replied, ‘‘. . .
based on my testimony at that hearing and my attitude to-
ward management.’’ Schimke testified he then asked, ‘‘Don’t
it matter that I worked a whole year and never missed a day,
never came in late, and worked all the overtime there was.’’
He recalled Malstrom replied, ‘‘No, it don’t matter. We got
people in your place already.’’
Schimke testified he had never received any reprimands
for his attitude. He indicated he did have a problem with
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Kraig Malstrom’s version of that situation is substantially the same as
Schimke’s, which is set forth, supra.
Kraig Malstrom with respect to doing some work. He ex-
plained Rood told him about a month after he was trans-
ferred to the repair department that he was to go to the
grinding department to do a few parts because they were be-
hind. He admitted he told Rood he did not want to do two
jobs; that he would like to get paid more money. He indi-
cated Rood to]d him he would have to talk to Kraig
Malstrom about that, and that he then went to Kraig and told
him, ‘‘If you want me to do two jobs, I need more pay.’’
He testified Malstrom told him he did not like his attitude;
they were a team; get the heck out and take the day off.
Schimke indicated Malstrom’s comments caused him to tell
Rood he would grind the parts, and he indicated he did go
to the grinding department and grind the needed parts.
General Counsel’s Exhibit 12 reveals that Schimke re-
ceived a merit raise of 10 cents bringing him to $6.10 per
hour on October 31, 1988. Kelvin Malstrom testified he au-
thorized the raise because Schimke had been there a year and
deserved a raise. He indicated a second reason had to do
with a need for uniformity among employees performing
specific types of work.
When he was called as an adverse witness by General
Counsel, Kraig Malstrom admitted a newly hired employee
was placed in Respondent’s repair department on February
21, 1989. He further indicated that, since that date, approxi-
mately 12 new employees have been hired and that 4 of
them worked in the repair department.
Respondent defended its decision to not recall Schimke
through testimony given by Kraig Malstrom, Kelvin
Malstrom, and Mike Rood.
Kraig Malstrom testified that his brother Kelvin was the
individual who made the final decisions on recall of laid-off
employees. He stated the criteria utilized in determining who
would or would not be recalled were ability, job perform-
ance, and the availability of positions; that Respondent’s pol-
icy has not been to recall all employees laid off before hiring
new employees; and that seniority is not a consideration. He
acknowledged that Schimke telephoned him the first couple
of weeks in March to inquire concerning recall. His version
of the conversation was that Schimke asked if they were
going to call him back and that he responded: ‘‘No, not at
this time.’’ He indicated Schimke asked him why, and testi-
fied his response was ‘‘because he wasn’t a team player . . .
due to his attitude—his work attitude.’’ He recalled that
Schimke then asked him if it made any difference that he
showed up to work everyday and worked all the overtime
necessary, and that he indicated that was considered.
Malstrom denied he mentioned the NLRB hearing when he
conversed with Schimke. He recalled the conversation con-
cluded with Schimke asking if he was going to bring him
back, and with him responding, ‘‘[N]o, not at this time.’’
Although Respondent contends Kelvin Malstrom made the
final decision that Schimke would not be recalled, Kraig
Malstrom testified he recommended that Kelvin not recall the
employee. He testified the reasons for his recommendation
were basically three in number: because he was not a team
player; he would not progress in his work by working on the
harder parts like showers and galleys; and because he had
narcolepsy, fell asleep on the job, and was a hazard to him-
self and other employees. Malstrom indicated he first con-
cluded Schimke was not a team player when he refused
Rood’s request that he perform certain grinding functions
shortly after he was transferred to the repair department.9 He
explained the employee’s failure to progress was evidenced
by his propensity to work on smaller parts which were not
needed and his reluctance to work, instead, on harder parts
such as galleys and shower stalls. Finally, he claimed the
employee’s narcolepsy disease exposed him to danger be-
cause he worked with power tools which could injure him
if he fell asleep, and his sleeping spells presented a danger
to other employees as he could conceivably start a fire or ac-
cidentally stab an employee if he had him using a utility
knife. Although Malstrom denied the Board hearing was dis-
cussed when he spoke with Schimke on the telephone, he in-
dicated that, when testifying at the hearing on objections and
challenges, Schimke had described the Company jacket he
had been given as being light blue when it was actually gray.
He indicated the company products are various shades of
white, and the employee’s inaccurate description of the jack-
et caused him and Kelvin to form doubts as to Schimke’s
ability to distinguish between the various off-white colors as
required in the repair department.
Although he admitted he had observed Schimke and
Robke wearing jackets with a union logo on them, and he
admitted he was aware Schimke had served as the Union’s
observer at the November 30 election, he denied that
Schimke’s participation in union activities was a factor in
Respondent’s decision not to recall him from layoff. He testi-
fied employees, Bob Smith and Marty lllll wore
jackets and were not laid off. He also testified that Joe
Raspotnik had testified at the representation hearing and had
been recalled from layoff.
During cross-examination, Kraig Malstrom acknowledged
that Schimke had notified them 3 or 4 months after he was
hired in November 1987, that he had narcolepsy. At the time,
the employee gave Kelvin Malstrom a three-page excerpt
from a publication which described the disease and its effect
on those who had it. Malstrom testified the insubordination
involving the refusal to grind parts occurred shortly after
Schimke was moved to the repair department after spending
about 3 months in the grinding department. With respect to
Schimke’s refusal to work on harder parts, Malstrom claimed
the employee had engaged in that practice since he had been
placed in the repair department. Finally, Malstrom indicated
his brother Kelvin told him he had given Schimke the Octo-
ber 31 merit raise because he had been with the Company
a year.
Michael Rood testified that Kelvin Malstrom asked him to
verbally evaluate Schimke and Robke when they were ready
to recall employees from layoff. He testified he told Kelvin
that Schimke refused to work on the harder parts and he had
a habit of falling asleep on the job at least 10 times a week.
He indicated he also reported to Kelvin that on one occasion
Schimke had taken a drink out of a cup containing resin.
Rood stated he recommended that Schimke not be recalled.
During cross-examination, Rood testified Schimke com-
menced his refusal to work on larger parts within a month
and a half after he was transferred to the repair department,
and that he drank the resin 4 or 5 months before he was laid
off.
23SWEETWATER CRAFTS
Kelvin Malstrom testified he made the final decision that
Schimke would not be recalled after discussing the matter
with Bob Smith, his brother Kraig, his father Jerry Malstrom,
Don March, and Mike Rood. He testified Schimke was not
recalled due to three factors: he had narcolepsy; he had an
attitude problem as he was not happy with the money he was
making and the working conditions; and the third factor was
ability—the fact that he worked on only small parts.
During cross-examination, Kelvin Malstrom testified
Schimke complained about wages throughout the time he
was employed. Similarly, he indicated the employee had
complained about inadequate lighting, a lack of buffers, and
insufficient b]ow dryers to fellow employees, Mike Rood,
and himself throughout the year he was employed. While
Kelvin agreed other employees complained about the same
things, he characterized Schimke as a chronic complainer. As
indicated, supra, Kelvin Malstrom testified he decided to
give Schimke the October 31, 1988 raise because he felt he
was entitled to one since he had been there a year, and he
wanted to accomplish a balance among employees.
Schimke was recalled briefly as a rebuttal witness. He in-
dicated that when gelling the various parts he worked on he
used different shades of white gel which was obtained form
55-gallon barrels or from cups. He claimed that the colors
in the barrels as well as the colors in the cups were marked.
Michael Robke
Michael Robke was employed by Respondent from July
1988 until he was laid off together with other employees on
December 15, 1988. During the last 3 or 4 months of his em-
ployment, he worked in the repair department and reported
to Mike Rood.
After the union organization campaign began, Robke
signed a Steelworkers authorization card. Thereafter, he was
given a jacket with a Steelworkers union logo, and he wore
it to work. He testified without contradiction that Kelvin
Malstrom and Mike Rood saw him wearing the jacket.
As indicated, supra, the employee testified Kelvin
Malstrom appeared at this work station about a month before
the November 30 election and stated ‘‘if the Union were to
come into our shop, they were going to pack up and move
elsewhere where they didn’t have to worry about unions.’’
Robke claims employees Schimke and Dennis Fisk were
‘‘standing around’’ at the time, and he recalled Malstrom
turned around and talked to Dennis after making the quoted
statement. Malstrom did not deny making the comment when
he appeared as a witness.
Robke testified Kelvin Malstrom informed him he was
being laid off on December 15, 1988. He described
Malstrom’s comments as follows:
He told me I was being laid off at the end of the day,
and that the single men were going first, due to that we
didn’t have families, and that the layoff would be two
to four weeks, and we’d be called back on seniority.
Like Schimke, Robke was given a jacket with a Sweetwater
patch on it when he left work at the end of the day on De-
cember 15.
Robke returned to the plant to inquire about recall 4 or 5
weeks after he was laid off. His description of the event ap-
pears at pages 45, 46, and 47 of the transcript and is as fol-
lows:
A. I walked in the plant. Kelvin wasn’t around, so
Jerry went and got him for me. And when he came out,
he looked at me and said, ‘‘What do you want?’’ And
I asked him—I said, ‘‘Well, I come to see if I—if you
were going to call me back from lay-off.’’
Q. When he said to you, ‘‘What do you want,’’ how
did he say that; in what manner?
A. Like he was mad because I was there.
Q. Okay. So then you said—you answered him, and
what did he say after that?
A. I—I asked—well, he said he didn’t know if he
was going to hire me back due to the fact of the union
activities in the plant and that they didn’t want a union
in there. They didn’t want the people who did and all
the union people were gone and they were satisfied
with who they had. And he didn’t know if he was
going to hire me back because I hung around with Rick
Schimke, due to the fact that he was a union advisor
or had something to do with the union—
Q. What happened—
A. —and on the stand.
Q. I beg your pardon?
A. Because he was on the stand.
Q. And what happened after that?
A. He paused for a moment, and then he said that
he would consider me for night shift?
Q. And what did you say to that, if anything?
A. I asked him why I had to be punished to be put
back on—to be put on night shift, and he said that was
so me and him could work eye-to-eye.
Q. Anything else said?
A. Yeah. He asked me if I was saying no to it, and
I said that I would take it. And then he said—told me
to come back in a week, and he would give me my an-
swer.
Q. Who is Kevin Hook?
A. An employee at Sweetwater.
Q. And did his name come up in the conversation?
A. Yes, it did.
Q. How did it come up?
A. I asked him why he had gotten called before me,
because I—I thought we were supposed to get called
back by seniority, and he said there was no seniority
at the plant.
Robke testified he returned to the plant a week later and
again conversed with Kelvin Malstrom in his office. He stat-
ed he asked him if he had made his decision, and Malstrom
said he was not going to hire him back because he had an
attitude problem toward the Company. When he was asked
if Malstrom said what the attitude problem was, the em-
ployee said complaining about dust masks and rubber gloves.
He claims nothing else was said at the time.
Robke testified that about a month prior to the time he
was laid off, he asked ‘‘Skip’’ Bob Smith, the crew leader
in the repair department, if they could get the department
some dust masks. He indicated that after Smith promised to
get back to him but did not, he discussed the matter with
Schimke who advised him to tell Rood the department need-
ed rubber gloves and dust masks. He claims he then asked
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Malstrom stated several times he could not recall what he had allegedly
said to Ursum.
Rood if he could get their department some rubber gloves
and dust masks, and Rood told him he would get back with
him.
Respondent defended its decision to refuse Robke’s recall
through the testimony of Kraig and Kelvin Malstrom.
Kraig Malstrom’s testimony was brief. He indicated he
mentioned to Kelvin that Robke was a chronic complainer.
While Kraig testified Robke never voiced complaints to him,
he claimed Robke was not happy with his job and com-
plained about pay and work conditions. He testified Robke
was unable to get along with his work leader, Steve Hulett,
when he worked in the mold shop.
Kelvin Malstrom’s testimony concerning his meetings with
Robke and his reasons for refusing to recall the employee
was disjointed and incomplete. He testified that, when Robke
first came to the plant to inquire about recall, he had not
ruled out the possibility that he would recall the employee,
but he was thinking about bringing him back on the night
shift. He indicated he worked on the night shift and did not
want Robke on the day shift because he felt he would be a
disruptive influence.
Moving to his first meeting with Robke, Kelvin Malstrom
summarized the meeting rather than recounting what was
said. He recalled Robke made mention of the fact that he had
hired a new employee and that Robke evinced his feeling
that he (Malstrom) had decided no more laid-off employees
were coming back. Malstrom testified that after Robke ex-
pressed that feeling, he told him his biggest problems were
attitude and ability, and that caused Robke to give recourse
back on what he felt was valid to be hired back. He recalled
that Robke sought to explain his poor attitude by telling him
part of the reason for his attitude was that another employee,
Colleen Bush, was floating around and being boss and irri-
tating him and his fellow workers. Malstrom indicated that
insofar as ability was concerned, Robke’s problem was that
his speed was marginal. When he was asked if Robke’s
union activity was discussed during the meeting, he claimed
one of the comments Robke came back with right away was
a statement that the reason he was not bringing him back
was because he was for the Union. Malstrom claims his
reply was ‘‘you don’t think that I know that I have other
union employees out there’’ Malstrom said the meeting con-
cluded with him saying he would think over the things and
comments Robke had made and he was to come back that
week.
After his first meeting with Robke, Malstrom testified he
discussed some of the things the employee had said with
Rood. He indicated he concluded Robke was not trying to
persuade him he deserved to be recalled because his job per-
formance was good, but, instead, he was claiming seniority
and his perception that he was better than some employees
who were recalled should entitle him to recall.
Kelvin Malstrom’s version of his second and final con-
versation with Robke varies substantially from the version
given by the employee. Malstrom claims that as soon as
Robke walked into the plant he asked if he would get Eric
Ursum, a laminator on the day shift. He claims Robke ex-
plained he wanted Eric because he had heard Malstrom had
said something and he did not want his friendship in jeop-
ardy with Eric. Malstrom indicated he got Ursum off the
floor and the three of them discussed what had irritated
Robke and when the situation became hostile he concluded
he would be dealing with a problem employee if he brought
him back.10 At some point, Robke asked if he was going to
be recalled, and Malstrom told him no.
IV. DISCUSSION AND CONCLUSIONS
The causation test spelled out in Wright Line, 251 NLRB
1083 (1980), is to be used to determine whether Rick
Schimke and Michael Robke were refused to recall from lay-
off in violation of the Act. There, the Board stated (at 1089):
First, we shall require that the General Counsel make
prima facie showing sufficient to support the inference
that protected conduct was a ’motivating factor’ in the
employer’s decision. Once this is established, the bur-
den will shift to the employer to demonstrate that the
same action would have taken place even in the ab-
sence of the protected conduct.
A. Credibility of Witnesses
Obviously, the credibility issues posed by the conflicting
testimony given by the alleged discriminatees and the
Malstrom brothers must be resolved before further analysis
of the testimony and evidence is accomplished.
With respect to the mid-March telephone conversation de-
scribed by Schimke and Kraig Malstrom, I, without hesi-
tation, credit the employee’s version. Schimke was the most
impressive witness who testified during the proceeding and
he answered questions without hesitation, did not display a
tendency to embellish and appeared to be attempting to state
the facts as he recalled them. On the other hand, Kraig
Malstrom repeatedly hesitated when he was asked questions
and he appeared to be carefully considering the legal import
of his responses before he spoke. As indicated, supra, he tes-
tified Schimke’s testimony during the hearing on challenged
ballots and objections to the election was considered when
the decision to refuse him recall was made. I am persuaded
he indicated such was the case when he spoke with Schimke
in mid-March. In sum, I credit Schimke where his testimony
conflicts with that given by Respondent’s witnesses, includ-
ing Kraig Malstrom.
Turning to the two recall-related conversations involving
Robke and Kelvin Malstrom, I am persuaded Robke’s
version of the first conversation is more reliable than the
version given by Malstrom, with the reservation that I gained
the impression Robke was stating conclusions to be reached
with respect to comments made by Malstrom concerning
Schimke. As indicated, supra, Malstrom made no attempt to
describe the complete conversation, and I conclude he erro-
neously recalled Robke complained of a new hire rather than
a laid-off employee with less seniority. Robke’s uncontested
testimony reveals, and I find, that Malstrom told the em-
ployee during the conversation that they did not want the
Union; did not want people that did; were satisfied with the
people they had; and that he voiced reservations about recall-
ing Robke because he and Schimke were friends.
With respect to the second conversation, the above-men-
tioned witnesses described, I am compelled to conclude that
neither described the complete conversation. Malstrom’s
recollection of the conversation was clearly faulty, and
Robke simply recalled only the portions of the conversation
25SWEETWATER CRAFTS
he wanted to recall. I credit the employee’s claim that
Malstrom eventually told him he was not going to recall him
because of his attitude, but do not credit his claim that the
attitude problem was described by Malstrom as stemming en-
tirely from his complaints about dust masks and gloves.
B. General Counsel’s Prima Facie Case
Summarized, the record testimony which I credit, and doc-
umentary evidence is as follows: Alleged discriminatees
Schimke and Robke were employed by Respondent in No-
vember 1987 and July 1988, respectively. Both supported the
Union in its 1988 organization drive by signing authorization
cards and by wearing jackets with union logos to work where
they were observed by Respondent management. Schimke
thereafter served as the Union’s observer at the November
1988 election, and he subsequently testified as a witness for
the Union at the January 19, 1989 hearing on challenged bal-
lots and objections to the election.
Schimke and Robke were laid off together with nine other
employees on December 15, 1988. Both were told they had
been selected because they were single and both were told
they would be recalled in 2 to 4 weeks. Robke was informed
recall would be by seniority. The record fails to reveal that
either employee had been disciplined for any reason by Re-
spondent prior to the time they were laid off. In fact,
Schimke received a merit raise of 10 cents a month-and-a-
half before he was laid off.
Four or five weeks after he had been laid off, Robke vis-
ited the plant, complained a junior employee had been re-
called ahead of him, and asked if he would be recalled. He
was informed Respondent did not want a union,; that it did
not want people who did; and that it was satisfied with the
people it had. Robke, who had previously worked on the day
shift, was tentatively offered a job on the night shift, and
Kelvin Malstrom informed him the reason was so they could
work eye-to-eye. The employee said he would accept the
offer, but Malstrom told him to return in a week and he
would give him his decision. When Robke returned a week
later, he was informed he was not going to be rehired.
In mid-March, Schimke telephoned Kraig Malstrom ob-
served a number of new employees had been hired and asked
if he was going to be recalled. Malstrom responded that he
was not going to be recalled based on his testimony at the
hearing and his attitude toward management.
During the period preceding the November 30 election,
Respondent evidenced antiunion animus by threatening to
move the plant if employees selected the Union as indicated,
supra, and, at the time the alleged discriminatees were re-
fused recall, there existed a possibility that the above-men-
tioned election would be set aside and a new election would
be conducted.
By adducing the evidence described, I find General Coun-
sel has established, prima facie, that Schimke and Robke’s
participation in protected conduct was a motivating factor in
Respondent’s decision to refuse them recall after layoff.
C. The Evidence Offered to Show the Alleged
Discriminatees Would Have Been Denied Recall Absent
Their Participation in Protected Conduct
As indicated, supra, Respondent’s president, Kraig
Malstrom, indicated the criteria utilized to determine whether
given employees would be recalled after layoff were ability,
job performance, and availability of positions. He, together
with his brother Kelvin, claimed seniority is not a consider-
ation. When he was asked if Respondent had refused to re-
call laid-off employees during previous layoffs, he recalled
that one employee had not been recalled immediately after
a summer layoff, but the employee had subsequently been re-
hired some months later.
With specific regard to Schimke, Kraig Malstrom testified
he recommended the employee not be recalled because: (l)
he was not a team player; (2) he would not progress to hard-
er parts; and, (3) he had narcolepsy and fell asleep on the
job. He added that he and Kelvin also discussed the fact that
Schimke had described the jacket they had given him at the
time of his layoff as blue when it was gray, and that indi-
cated to them he would be unable to distinguish the various
shades of white which were used on parts in their repair de-
partment. Michael Rood also testified he recommended to
Kelvin Malstrom that Schimke not be recalled. He claimed
the employee refused to work on harder parts, and fell asleep
on the job at least 10 times a week. He also indicated
Schimke had taken a drink of resin out of a cup on one occa-
sion.
Kelvin Malstrom was alleged]y the person who made the
final decision that Schimke was not to be recalled. His stated
reasons for the decision were: (l) he had narcolepsy; (2) he
had an attitude problem as he was not happy with the money
he was making and the working conditions; and, (3) he
lacked ability and would work only on small parts.
I find the reasons assigned by Respondent for its failure
to recall Schimke from layoff to be unconvincing for several
reasons. First, the record reveals that Respondent’s manage-
ment became aware of the employee’s supposed work and
health deficiencies early in his employment. Second, with ex-
ception of the altercation between the employee, Rood, and
Kraig Malstrom over his initial refusal to grind parts as in-
structed by Rood, the record fails to reveal the employee
ever received even as much as an oral warning that he was
failing to perform adequately. Third, the employee received
a merit raise on October 30, 1988, long after the alleged de-
ficiencies had been noted. Finally, the employee was refused
recall only after he had engaged in extensive union activity
and, at the time he was refused recall, a possibility existed
that the November 30 election would be set aside, and a new
second election would be conducted.
In sum, I conclude Kraig Malstrom informed the employee
of Respondent’s real reasons for refusing him recall during
their mid- March 1989 telephone conversation. I find the rea-
sons assigned for the refusal to recall the employee at the
hearing are pretexts advanced to mask the unlawful reason
for its action. Accordingly, I find Respondent has failed to
show it would have refused to recall the employee absent his
participation in protected concerted activities. In sum, the
record reveals Rick Schimke was refused recall by Respond-
ent because he was a known union adherent and he had testi-
fied as a witness for the Union in the representation case. I
find, as alleged, that by refusing to recall the employee from
layoff for the reasons indicated, Respondent violated Section
8(a)(1), (3), and (4) of the Act.
As indicated, supra, Respondent’s assigned reasons for re-
fusing Robke recall were that he chronically complained
about the same things Schimke complained about; he con-
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Having found the refusals to recall Schimke and Robke violated Sec.
8(a)(1) and (3), I find it unnecessary to consider General Counsel’s claim that
Respondent engaged in independent violation of Sec. 8(a)(1) of the Act by re-
fusing the named employees recall.
12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
gregated with other employees and listened to their com-
plaints and thereby interfered with production; and he failed
to produce at a speed which was satisfactory. Kelvin
Malstrom indicated he felt Robke instigated employee com-
plaints and was a disruptive influence on other employees.
I conclude the reasons advanced for Respondent’s refusal
to recall Robke from layoff are not convincing. The record
reveals the employee voiced complaints throughout the time
he was employed, but absolutely no evidence was offered to
show that he ever received any warnings or reprimands for
conduct which Respondent now claims was offensive. More-
over, while it is claimed that he did not produce fast enough
on occasion, no production records or other reliable docu-
mentary evidence was offered to substantiate the claim. In-
deed, no specific incident wherein the employee allegedly
failed to perform adequately was described. I find Respond-
ent has failed to show it would have refused to recall the em-
ployee from layoff in the absence of his participation in pro-
tected concerted activities. Accordingly, I find, as alleged,
that by refusing to recall Michael Robke from layoff, Re-
spondent violated Section 8(a)(1) and (3) of the Act as al-
leged.11
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent engaged in conduct which violates Section
8(a)(1) of the Act by threatening employees by telling them
it would move its plant if they selected a union to represent
them, by soliciting and rectifying employee grievances at a
time when a question of representation existed, and by main-
taining an unlawful rule or policy which prohibited employ-
ees from discussing their rates of pay among themselves.
4. Respondent violated Section 8(a)(1) and (3) of the Act
by refusing to recall employees Rick Schimke and Michael
Robke from layoff because they joined and supported the
union.
5. Respondent violated Section 8(a)(4) of the Act by refus-
ing to recall employee Rick Schimke from layoff because he
gave testimony in a Board proceeding.
6. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent refused to recall Michael
Robke from layoff in violation of Section 8(a)(1) and (3) of
the act, and having found it refused to recall Rick Schimke
from layoff in violation of Section 8(a)(1), (3), and (4) of the
Act, I shall recommend that it be ordered to offer Schimke
and Robke immediate and full reinstatement to their former
or substantially equivalent positions of employment, without
prejudice to their seniority or other rights and privileges. It
is further recommended that Respondent be required to make
the named employees whole for any loss of earnings suffered
by them by reason of the unlawful discrimination practiced
against them, less interim earnings, with backpay to be com-
puted as provided in F. W. Woolworth Co., 90 NLRB 289
(195), and with interest thereon to be computed in the man-
ner provided in New Horizons for the Retarded, 283 NLRB
1173 (1987).
I shall also recommend that Respondent expunge from its
records any reference to the unlawful refusals to recall
Schimke and Robke from layoff, and inform them that such
will not be used as a basis for further personnel action con-
cerning them.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, Sweetwater Crafts, Inc., Manistee, Michi-
gan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees by telling them it will move its
plant if they select a union to represent them.
(b) Soliciting employee grievances and seeking to rectify
them at a time when a question of representation exists.
(c) Maintaining a rule or policy which prohibits employees
from discussing wages among themselves.
(d) Refusing to recall Rick Schimke, Michael Robke, or
other employees from layoff because they join or support
United Steelworkers of America, or any other labor organiza-
tion.
(e) Refusing to recall Rick Schimke, or other employees,
from layoff because they have given testimony in a Board
proceeding.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Rick Schimke and Michael Robke immediate re-
instatement to their former positions of employment or, if
their positions are no longer available, to substantially similar
positions, without prejudice to their seniority or other rights,
and make them whole for the loss they suffered as a result
of the discrimination in the manner set forth above in the
remedy section of this decision.
(b) Remove from its files reference to the unlawful refus-
als to recall Rick Schimke and Michael Robke, and notify
them in writing that this has been done, and that the evi-
dence of this unlawful activity will not be used as a basis
for future actions against them.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all records or doc-
uments necessary to analyze and determine the amount of
backpay owed to Schimke and Robke.
27SWEETWATER CRAFTS
13 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
(d)Post at its Manistee, Michigan facility copies of the at-
tached notice marked ‘‘Appendix.’’13 Copies of the notice,
on forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e)Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten employees by telling them we will
move our plant if they select a union to represent them.
WE WILL NOT solicit employee grievances and seek to rec-
tify them at a time when a question of representation exists.
WE WILL NOT maintain a rule or policy which prohibits
employees from discussing wages among themselves.
WE WILL NOT refuse to recall employees from layoff be-
cause they join or support United Steelworkers of America,
or any other labor organization.
WE WILL NOT refuse to recall employees from layoff be-
cause they have given testimony in a Board proceeding.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
WE WILL offer Rick Schimke and Michael Robke imme-
diate reinstatement to their former positions of employment
or, if their positions are no longer available, to substantially
similar positions, without prejudice to their seniority or other
rights, and make them whole for the loss they suffered as a
result of our discrimination against them.
WE WILL remove from our files reference to the unlawful
refusals to recall Rick Schimke and Michael Robke, and no-
tify them in writing that this has been done, and that the evi-
dence of this unlawful activity will not be used as a basis
for future actions against them.
SWEETWATER CRAFTS, INC.